Hearings on Guantanamo War Crimes Trials Continue

In light of the Supreme Court's recent ruling against the Bush Administration, the Senate Armed Services Committee held a hearing Thursday on how to try Guantanamo Bay detainees for war crimes. It was one of a series of similar hearings on Capitol Hill this week.

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STEVE INSKEEP, host:

Israel began its campaign against Lebanon on Wednesday, after Hezbollah fighters kidnapped two Israeli soldiers. Hezbollah has called for a trade: the Israeli soldiers in exchange for prisoners held in Israel.

Now President Bush has said that Israel has the right to defend itself, but should be careful not to weaken the emerging Lebanese democracy.

The president's recommendation on another issue is under pressure here in Washington. The nation's top military lawyers are urging Congress not to follow the Bush administration's request to ratify the military tribunal system. That's the system recently struck down by the Supreme Court, a manner for trying detainees.

Six current and former judge advocates general testified on the issue yesterday before the Senate Armed Services Committee, and here's NPR's Legal Affairs Correspondent Nina Totenberg.

NINA TOTENBERG reporting:

Earlier this week, administration officials testified that using the Uniform Code of Military Justice would make it impossible to prosecute terrorists captured on the battlefield. But yesterday, the six JAGs, representing all the uniform military services, disagreed.

They said that while the UCMJ would have to be modified for war crimes trials, the basic formula can work. No one is suggesting, they said, that prisoners would have to be Mirandized or given counsel on the battlefield. And on the question of how to use classified information at war crimes trials, the JAGs noted that long-standing rules provide for a variety of mechanisms to insure that intelligence sources and methods are protected.

Senators were also concerned about the Supreme Court's ruling that Common Article III of the Geneva Convention applies to all detainees. That's the provision that bars cruel and inhumane treatment. But to a man, the JAGs said, the troops had been trained for 50 years to live by that rule. That's fine for the troops, said Senator Lindsey Graham, but what keeps him up at night is what happens when the CIA gets hold of a high value intelligence source. Does the CIA also have to abide by the ban on torture and inhumane treatment?

Air Force Judge Advocate General Jack Rives.

Major General JACK RIVES (Judge Advocate General, U.S. Air Force): Speaking to a lot of folks in the intel community, I don't believe they need to cross the lines into violations of the Detainee Treatment Act or Common Article III to effectively gather intelligence. Sometimes we will gather intelligence knowing that we're not going to be able to use that evidence against an individual in a criminal court, and that's okay.

TOTENBERG: After all, unlike in civilian life, an enemy combatant can be detained even if he's not prosecuted.

Yesterday's hearing provided more than a few bumps for the administration. Committee chairman John Warner and Senator John McCain both said the administration appears to be reneging on an agreement they had with the White House to use the UCMJ as a baseline for new legislation.

To make matters worse, largely unnoticed was a series of questions and answers that undercut the judicial nomination of Defense Department Counsel William Haynes. Haynes was the Pentagon official who recommended harsh interrogation tactics for detainees, tactics that were so widely condemned that many were eventually withdrawn. When Haynes testified at a second confirmation hearing on Tuesday, Senator Graham asked him whether the JAGs had seen those recommendations before they were implemented.

Senator LINDSEY GRAHAM (Republican, South Carolina): Did the JAGs ever receive the final product of the working group?

Mr. WILLIAM HAYNES (General Counsel, Department of Defense): I believe that they did.

TOTENBERG: Yesterday, Graham put that same question to General Rives.

Sen. GRAHAM: The final product, did you ever see that product?

Maj. Gen. RIVES: I saw the April 2003 report about 14 months after it was issued. No one in the Air Force JAG had seen it before then, to my knowledge.

TOTENBERG: The other JAGs later gave similar answers. They've made no secret of their belief they were kept out of the loop because they opposed such tactics as a violation of the Geneva Conventions. And their answers yesterday will almost certainly lead to the charge that Mr. Haynes misled the Senate Judiciary Committee at his confirmation hearing.

Nina Totenberg, NPR News, Washington.

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